JUDICIAL IMPARTIALITY: BETWEEN LAW AND …

1 0 JUDICIAL impartiality : BETWEEN LAW AND ethics STATE: SPAIN TEAM : Ana Libertad Laliena Piedrafita Blanca Mar a S nchez-BlancoMancera Pablo Catal n Garc a 1 INTRODUCTION: METHODOLOGICAL APPROACH Studying impartiality from an ethical point of view raises some obvious methodological issues. JUDICIAL impartiality is not only an ethical principle, it is also a legal principle with its own specific rules in each legal system. What is the point of ethical requirements formulated in quite generic codes if there are already specific legal rules regulating impartiality in each legal system? Moreover, can we extract from these ethical codes rules for the daily practice of the JUDICIAL function that are not laid down in the legal systems?

2 Besides these there are other significant issues: (a) Ethical codes are culturally conditioned; (b) They are the expression of minimum agreements adopted BETWEEN judges and the organisations of various States and as a consequence they are formulated in quite abstract and general terms; (c) Any attempt to analyse the case-law or to detail the mandates relating to the principle of impartiality would offer us the image of legal impartiality , not the image of ethical impartiality . In order to resolve these problems we have to attempt an analysis that should: (a) be not only European; (b) be casuistic and not abstract; (c) compare not only legal texts but also ethical texts. This leads us to adopt the following methodology: Firstly, we shall compare Latin American and European codes to systematise and to find a shared ethical basis with regard to impartiality which goes beyond exclusively European or state cultural contexts.

3 Secondly, we shall study the case-law regarding JUDICIAL impartiality in the supranational courts of human rights in Europe and Latin America. That is, comparatively examine the case law of the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (ICHR) to define the shared area of understanding of impartiality in the legal world. Thirdly, we shall try to draw any conclusions from the comparison that would appear to indicate, at least in the European and Latin American cultural contexts, the role of ethics and law in the definition of JUDICIAL impartiality . impartiality AND ETHICAL CODES UNIVERSAL CODES Basic Principles on the Independence of the Judiciary.

4 The Basic Principles on the Independence of the Judiciary, endorsed by the resolutions of the General Assembly of the United Nations in 1985, is the first international text that formulates ethical standards for judges. It is designed not only to ensure the independence of the judiciary but also to ensure the right of everyone to a fair and public trial, conducted before an independent and impartial tribunal, according to the article 10 UDHR and the article 14 ICCPR. The JUDICIAL duty of impartiality is 2 established in the article 21 and the article 8 prescribes that judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

5 However, these statements are still too generic to be considered as ethical conduct instructions. The Universal Statute of the Judge. The Universal Statute of the Judge was approved by the International Association of Judges on 11/17/1999. It generically lists the most basic rules of conduct for judges and one of them is JUDICIAL impartiality (article 5). It highlights not only the obligation to be and to be seen to be impartial but also the duty to fulfil their obligations with restraint and attention to the dignity of the court and of all persons involved. Article 7 also establishes that "The judge must not carry out any other function, whether public or private, paid or unpaid, that is not fully compatible with the duties and status of a judge.

6 Bangalore Principles of JUDICIAL Conduct. The Bangalore Principles, endorsed through ECOSOC Resolution 2006/23, set up a veritable code of JUDICIAL ethics , although they have not received this designation expressly because it has prescriptive and exhaustive connotations in civil law countries . In contrast to the Basic Principles of 1985, Bangalore Principles are addressed directly to the judges and according to its preamble, should be considered as a guiding framework of, standards for ethical conduct of judges . The Bangalore Principles identify six core values of the judiciary: Independence, impartiality , Integrity, Propriety, Equality, Competence and Diligence. It also describes their content and defines the required conduct of their recipients.

7 The second value is impartiality and it is considered essential for the proper discharge of the JUDICIAL function, related not only to the court decision but also to the decision making process. Regarding the conduct required of judges, the text provides a guideline2 concerning conduct inside and outside the courts and includes limitations to freedom of expression, introducing the appearance of impartiality as a relevant factor. It also provides an open list of situations from which the judge must abstain, including not only the objective side of impartiality , but also the subjective internal side. Finally, the section on Implementation of the Principles states that: By reason of the nature of JUDICIAL office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement these principles if such mechanisms are not already in existence in their jurisdictions LATIN-AMERICAN CODES.

8 1 The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. (article 2) 2 See table 2 3 In Latin-America the steps towards the creation of a common ethical code began in 2001 with the inclusion of a specific chapter on JUDICIAL ethics in the Statute of the Latin American Judge. Following this line, the Charter of Citizens' Rights to Justice in the Latin American JUDICIAL Area of 2002 recognises the fundamental right of the population to obtain access to an independent, impartial, transparent, responsible, efficient, effective and fair form of justice.

9 The process culminates with the adoption of the Model Code of JUDICIAL ethics in the XIII Latin-American JUDICIAL Summit in Santo Domingo, in June 2006. They are not mandatory texts but their effectiveness lies in the moral force with which they are imbued, due to the fact of having been adopted by those representing the highest JUDICIAL authorities in each country. Furthermore, so far 15 countries have enacted JUDICIAL Ethical Codes or similar rules3. Statute of the Latin American Judge The Statute of the Latin American Judge (2001) is not designed to be a text containing minimum measures because it is not limited to compiling the lowest common denominator of the legal systems of Latin American countries but instead addresses how to raise the level of guarantees in each State.

10 Section II of the Statute is about impartiality (Arts. 7 to 10), considered as an indispensable condition for the exercise of the jurisdictional function. In order to ensure the necessary confidence that the courts need to inspire in a democratic society, the Statute introduces the requirement of the appearance of impartiality (art. 8) which means that it has to be obvious to citizens beyond all reasonable doubt. Article 9 establishes the obligation of abstention It does not specifically mention the causes, but refers only to the existence of a previous link with the object of the process, parties or interested persons, according to the terms established by law. The Statute also provides for sanction of abstentions without foundation and groundless objections accepted by the judge.